FAMILY LAW ASSIGNMENT
ON
INHERITANCE UNDER
MUSLIM LAW
Submitted By:
Shimran Zaman
BA LLB (Hons.)
4th Semester
Roll No. 54
Jamia Millia Islamia University
New Delhi
INTRODUCTION
The Islamic Law of inheritance is a combination of the pre-Islamic
customs and the rules introduced by the Prophet. Whatever is left
after the death of a Muslim is his heritable property. This property can
be movable or immovable and ancestral or self-acquired. The estate of
a deceased Muslim devolves on his heirs separately and the heirs are
entitled to hold the property as tenants-in-common, each having a
definite share in the property.
In Abdul Raheem vs. Land Acquisition Officer 1, it was held that the
joint system family or joint property is unknown to Muslim law and
therefore the right, title and interest in the land held by the person
stands extinguished and stands vested in other persons.
Under the Indian legislative scheme, the rules that govern inheritance
under the Muslim law depend on the kind of property involved. In
cases of Non testamentary succcession, the Muslim Personal Law
(Shariat) Application Act, 1937 gets applied. On the other hand, in
case of a person who dies testate i.e. one who has created his will
before death, the inheritance is governed under the relevant Muslim
Shariat Law as applicable to the Shias and the Sunnis. In cases where
the subject matter of property is an immovable property which is
situated in the state of West Bengal or comes within the jurisdiction
of Madras or Bombay High Court, the Muslims shall be bound by the
Indian Succession Act, 1925. This exception is only for the purposes
of testamentary succession.
It is noteworthy that the Muslim law does not make any strict
distinction between any two or more type of properties such as
movable and immovable, corporeal and incorporeal etc. Since there is
no such distinction between different kinds of properties, therefore, on
the event of death of a person, every such property which was within
1
AIR 1989 AP 318
the ambit of ownership of the deceased person shall become a subject
matter of inheritance.
In Rijia Bibi v. Md. Abdul Kachem2, the dispute comprised of will
and inheritance under Muslim law. One Abdul Khalaque died, leaving
behind 3.25 acres of land. After his death, respondent no. 1, claiming
to be the first wife of the deceased and respondent nos. 2 and 3,
claiming to be sons of Abdul Khalaque through his first wife, claimed
their share to the property left by Abdul Khalaque but the defendants,
i.e. appellant no. 1 (being the second wife) and appellant nos. 2 to 6
(being the sons of Abdul Khalaque through second wife) and
appellant nos. 7 and 8 (being the daughters of Abdul Khalaque
through the said second wife), denied the right of the respondents and
refused to make a partition according to the Mohammedan law of
inheritance and, therefore, the respondents as plaintiffs instituted a
suit in the trial court, claiming partition of the land. The trial court
decided all the issues in favour of the plaintiffs and also determined
the share of the plaintiffs and the defendants. The
defendants/appellants filed appeal before the district judge
challenging the judgment, who upheld the judgment passed by the
trial court but re-determined the share of the plaintiffs and defendants
according to the Mohammedan law holding that the determination of
share by trial court was not correct. On second appeal before the high
court, the question of law was whether the lower court committed any
error by holding that the ‘Will’ executed by late Abdul Khalaque was
void and inoperative, being opposed to Muslim personal law. After
perusal of trial court’s judgment, the high court found that the trial
court had arrived at a conclusion that the will was a forged one, and
that the plaintiffs and the defendants all were legal heirs of deceased.
However, the first appellate court had upheld the decision of the trial
court that the plaintiffs and the defendants were all legal heirs of the
deceased, disagreeing with the finding that the alleged will was a
forged one. The court also re-determined the share of the plaintiffs
and the defendants.
2
AIR 2013 Gau 34, 2013(2) GLD 625
SOURCES OF INHERITANCE UNDER
MUSLIM LAW
There are 4 sources of Inheritance under Muslim Law taken into
consideration:
1. The Holy Quran
2. The Sunna - that is, the practice of the Prophet
3. The Ijma - that is, the consensus of the learned men of the
community on what should be the decision on a particular point
4. The Qiya - that is, an analogical deduction of what is right and just
in accordance with the good principles laid down by God.
Muslim law recognizes two types of heirs, Sharers and Residuaries.
Sharers are the ones who are entitled to a certain share in the
deceased’s property and Residuaries would take up the share in the
property that is left over after the sharers have taken their part.
RULE OF REPRESENTATION
Doctrine of representation states that if during the lifetime of an
ancestor, any of his or her legal heirs die, but the latter’s heirs still
survive, then such heirs shall become entitled to a share in the
property as now they shall be representing their immediate
generation.
Doctrine of Representation finds its recognition in the Roman,
English and Hindu laws of inheritance. However, this doctrine of
representation does not find its place in the Muslim law of
inheritance. The Shia Law accepts the principle of representation as a
cardinal principle for the purpose of ascertaining the heirs but Sunni Law
is different. According to Sunni Law the expectant right of an heir-apparent
cannot pass by succession to his heir, nor can it pass by bequest to a legatee
under his will.
Suppose X, a Sunni Muslim has two sons, the first son dies in the lifetime of
his father, but leaving a son. Afterwards X dies leaving his second son and the
grandson by the predeceased son. Here under Sunni Law the surviving son will
get the whole property excluding his nephew, i.e., grandson of X. Here in this
case the grandson cannot claim his father‟s share because in the
lifetime of X, the first son died. Here the grandson is not entitled
to claim his father’s share as representing him perhaps because, his
father never inherited from his grandfather. Thus, in this present illustration the
grandson is excluded from the inheritance, by his uncle, on the ground that a
son of a predeceased son is not an heir.
But according to Shia Law, the descendants of a deceased son, if they are heirs,
take the portion which he, if living, would have taken and in that sense
representthe son. In the same limited sense, the descendants of a deceased
daughter represent thedaughter, if they inherit, they take the portion which the
daughter, if living, would have taken.Under Shia Law, this principle of
representation is not only confined in its operation todescendants only but it
applies in the accending as well as in the descending line. Thus, great-grand
parents, if living, would have taken and the fathers and aunts take the portion
which the
deceased‟s uncles and aunts if living would have taken.
RULE OF DISRTIBUTION
Vesting of property takes place immediately on the death of the
propositus. Under the Muslim law, distribution of property can be
made in two ways, firstly per capita or per strip distribution. Per –
Capita distribution method is majorly used in the Sunni law.
According to this method, the estate left over by the ancestors gets
equally distributed among the heirs. Therefore, the share of each
person depends on the number of heirs. The heir does not represent
the branch from which he inherits.
On the other hand, per strip distribution method is recognised in the
Shia law. According to this method of property inheritance, the
property gets distributed among the heirs according to the strip they
belong to. Hence the quantum of their inheritance also depends upon
the branch and the number of persons that belong to the branch. It is
noteworthy that the Shia law recognises the principle of
representation for a limited purpose of calculating the extent of the
share of each person. Moreover, under the Shia law, this rule is
applicable for determining the quantum of the share of the
descendants of a pre-deceased daughter, pre-deceased brother, pre-
deceased sister or that of a pre-deceased aunt.
PRINCIPLES GOVERNING RULES OF
INHERITANCE OF JOINT OR ANCESTRAL
PROPERTY
Unlike Hindu law, there is no provision of distinction between
individual i.e. self acquired or ancestral property. Each and every
property that remains within the ownership of an individual can be
inherited by his successors. Whenever a Muslim dies, all his property
whether acquired by him during his lifetime or inherited from his
ancestors can be inherited by his legal heirs. Subsequently, on the
death of every such legal heir, his inherited property plus the property
acquired by him during his lifetime shall be transferred to his heirs.
RIGHT OF FEMALES IN INHERITANCE OF
PROPERTY
Muslim does not create any distinction between the rights of men and
women. On the death of their ancestor, nothing can prevent both girl
and boy child to become the legal heirs of inheritable property.
Preferential rights do not exist. However, it is generally found that the
quantum of share of female heir is half of that of the male heirs. The
justification available to this distinction under Muslim law is that the
female shall upon marriage receive mehr and maintenance from her
husband whereas males will have only the property of the ancestors
for inheritance. Also, males have the duty of maintaining their wife
and children.
Quran has clearly mentioned about the distribution of property among
the heirs including women. What is unique about the rights in
inheritance is that while in most of the religious matters, Quran
provides only the basic guidelines; it gives detailed plan of
distribution among all the heirs – father, mother, husband, wife, sons
and daughters. Moreover, the shares in inheritance apply to all forms
of assets – agricultural or urban, commercial our non-commercial,
mobile or immobile. As women have right to inherit, they also have
the right to bequeath and make wills.
RIGHTS OF INHERITANCE OF A CHILD IN
A WOMB
Under Muslim Law, a child in the womb shall only be entitled to the
share in property if he or she is born alive. In case if he is born dead
then the share vested in him shall cease to exist and it shall be
presumed that it never existed.
RIGHTS OF A CHILDLESS WIDOW AND A
WIDOW
Under the Shia law, a Muslim widow who does not have any children
shall be entitled to inherit one – fourth share of the movable property
belonging to her deceased husband. However, a widow with children
or childless widow is entitled to one – eighth of the deceased
husband’s property. In cases where a Muslim man gets married during
a period when he is suffering from some mental illness and dies
without consummating the marriage, the widow shall not be entitled
to any right over her dead husband’s property.
This applies mainly to situations where women become widows at
young age and/or there are other natural inheritors of husband’s
property. If she is old, does not intend to remarry and her children live
with her, this of course becomes easy. In case, she does not have a
support, she gets the share in her husband’s assets and a permission to
live where she was living (in case this is not inherited by her) for one
year. After that she may marry again or make her arrangements with
the help of what she gets from her husband.
In Muslim Personal Law (shariat) Application Act 1937
the rules of inheritance are stated as follows:
A son gets double the share of the daughter wherever they inherit
together.
The wife gets one-eighth of the share if there are children and one-
fourth of the share if there are no children. In case the husband has
more than one wife, the one-eighth share will be divided equally
among all wives. The husband gets one fourth of the share of his dead
wife’s property, if there are children and one-half if there are no
children
If the parent has more than one daughter, only two-third of the
property shall be divided equally among daughters. If the parent has
only one daughter, half of the parent’s property is inherited by her.
The mother gets one-sixth of her dead child’s property if there are
grandchildren and one-third of the property if there are no
grandchildren.
Parents, children, husband and wife must, in all cases, get shares,
whatever may be the number or degree of the other heirs.
Slavery, homicide, difference of religion and difference of allegiance,
exclude from inheritance.
CONCLUSION
The Muslim law of inheritance is a unique aspect of Muslim law. It is
a different system of law. Prophet Mohammed said: “Learn the laws
of inheritance and teach them to the people; for they are one-half of
useful knowledge”.
About the Muslim law of inheritance, Tayabji observed: “The Muslim
law of inheritance has always been admired for its completeness as
well as the success with which it has achieved the ambitious aim of
providing not merely for the selection of a single individual or a
homogenous group of individuals, on whom the estate of the deceased
should devolve by universal succession, but for adjusting the
competitive claim of all the nearest relations”.
The twin doctrines of the Mitakshara school of Hindu law, viz., son’s
birth right and survivorship, are also not recognised in Muslim law.
Since under Muslim law, all properties devolve by succession, the
right of heir-apparent does not come into existence till the death of the
ancestor. In Islamic law distinction between the family properly and
the separate property has never existed, and in India Muslim law did
not recognize the joint family property, though among the South
Indian Muslims having matrilineal system, the institution of tarwad is
recognised.
